Domain expired, but TM still exists

Trademarks

[spikedo55]

A domain previously owned by an online merchant has expired.

I believe the merchant has gone out of business.

The merchant still has a TM on the words that make up the domain.

<edit>Does the cessation of business operations impact trademark?</edit>

[edited by: Webwork at 10:22 pm (utc) on Oct. 13, 2005]
[edit reason] Generalized question [/edit]

[Frequent]

Excellent question. I would like to hear an answer on this as well.

Freq---

[davezan]

The question here isn't "Does someone still have a trademark for the domain name-sake
I want to use?". The real question is "Is how I'll use the domain name going to infringe on
someone else's rights?". (especially trademark rights...)

Besides, someone else might have a trademark for the name in some unknown country. ;)

[Webwork]

Preliminary questions:

1. You state "I believe" they're out of business. Are they or are they not? How do you know? Does "out of business" mean they filed bankruptcy? Was there a liquidation? These circumstances and more may play into the status of the mark. Who or "what" actually held the mark? A corporation?

2. What country are we talking about? Trademark law varies by country.

3. Is this a registered mark? How do you know? Did you search the relevant trademark office for evidence of registration?

4. If you searched the trademark office of the relevant country did you also query their knowledge base (if they have one, most do) for an answer to your question? I ask because your question is likely a fairly common one. At least it strikes me that way.

5. Might the holder of a mark for a company that fell on bad times be a "wounded animal", one that might be prone to bite someone? Maybe a simple phone call or letter could clear things up?

Per the Domain Forum's Charter [webmasterworld.com] I edited original post. Please take a minute to read the Charter.

[nativenewyorker]

Another possibility to consider is that even if the company is defunct and was liquidated, it's quite possible that someone else may have bought the rights to the trademark.

I'm surprised Webwork didn't say so, but the best place to get an answer for something like this is an attorney. Webmaster World is a forum for webmasters, not legal experts and certainly not the place to get legal advice. That being said, I am not a lawyer and the above statement is my personal opinion.

[Webwork]

NNY, as a general rule, you're right, but in this case my objective - at least in my initial response in asking those questions - was to spotlight or create awareness of the complexity of the issues raised in the initial (edited) post.

I've been asking myself how we might explore and dialogue about issues where my initial instinct is to slam on the brakes. This is one.

If we can keep the dialogue away from "You should do this or that" when legal issues arise and move the dialogue more towards recognizing or discussing what people need to think about and research we might actually do some good.

And, as always, TTAL - which hereafter will stand for "Talk to a Lawyer". :)